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Business Immigration Zone (BIZ): Businesses Brace for H-1B Battle as Employment-Based Visas Become Harder to Obtain

Employment-based immigration is becoming increasingly difficult; the Trump administration just made it more difficult for companies to renew H-1B visas for foreign professionals who work in specialty occupations. Previously, when it was time to renew an H-1B employee’s status, the U.S. Citizenship and Immigration Service (“USCIS”) gave deference to past H-1B approval decisions. When due, this enabled H-1B visa holders to generally obtain extensions. USCIS recently rolled back that guidance and now requires no deference, so H-1B visa holders who seek extensions must again prove eligibility as though they are seeking H-1B visas for the first time. This policy shift will impose greater uncertainty, higher costs and labor delays to companies who rely on foreign talent. USCIS is directing officers to use the same amount of scrutiny for initial and extension requests, and indicating that the new guidance applies to a variety of employment visas.

In light of this new policy, employers should prepare for detailed Requests for Evidence (“RFE”) when H-1B extension requests are filed. These RFEs will increase the administrative burden on employers seeking H-1B visas, and the policy shift works in tandem with a series of other recent changes. Earlier this year, the Trump administration prevented employers from having H-1B visa petitions adjudicated on an expedited basis and also imposed a rule requiring in-person interviews with employment-based immigrant visa applicants.

H-1B visas are valid for a total of six years and are normally issued in three-year increments. They are heavily used in the technology, energy, engineering and healthcare sectors and bring stability to the workforces in those industries. To prepare for the new renewal process, H-1B employers should take the following steps:

Determine which employees are currently in H-1B status and when their status is set to expire.

Determine whether those H-1B employees still work in specialty occupations that require a bachelor’s degree or a specific concentration of skill/discipline in a specialized knowledge area.

Determine whether the company actually has a need for the H-1B incumbent’s continued employment and whether that need can be documented with evidence.

Initiate the renewal process far enough in advance to secure an extension before an H-1B employee’s status expires.

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